Archive/File: orgs/canadian/canada/justice/hate-motivated-violence/hmv-005-01
Last-Modified: 1997/01/21
Source: Department of Justice Canada
5.1.2.1 Specific Hate Crime Laws
The model for this kind of law is, in large part, that
proposed by the Anti-Defamation League (ADL). Its model
legislation provides for crimes of institutional vandalism
and intimidation; a civil action that is available to a
victim for injury or damage to property arising out of this
criminal conduct; and requirements for the collection,
reporting and use of information about hate crimes by police
officers and for the training of police officers in order to
identify such crimes.<111>
The crime of institutional vandalism is generally defined as
knowingly vandalizing, defacing or damaging (a) any church,
synagogue or place used for religious worship or other
religious purpose; (b) any cemetery, mortuary or other
facility used for the purpose of burial or memorializing the
dead; (c) any school, educational facility or community
centre; (d) generally, any grounds adjacent to these
structures; and (e) any personal property contained therein.
Depending on the degree of damage, the crime is treated as a
misdemeanour or as varying degrees of felonies. <112>
The crime of intimidation is defined as follows:
A. A person commits the crime of intimidation if, by
reason of the actual or perceived race, colour,
religion, national origin or sexual orientation of
another individual or group of individuals, he violates
Section __________ of the Penal Code. (insert code
provision for criminal trespass, criminal mischief,
harassment, menacing, assault, and/or other appropriate
statutorily proscribed criminal conduct).
B. Intimidation is a misdemeanour/felony (the degree of
the criminal liability should be at least one degree
more serious than that imposed for
commission of the offense).<113>
Thus, this crime of intimidation requires, in addition to
the basic criminal conduct, proof of the perpetrator's
motive or intent in targeting the victim or the victim's
property because of his or her race, colour, religion,
national origin or sexual orientation.<114> The result is a
more severe penalty than that imposed for the basic crime.
According to the ADL, the enhanced penalties should be
sufficiently severe to have their desired deterrent impact.
As well, the statute is most effective when it increases the
penalties for the broadest range of criminal conduct.<115>
The ADL adds: "Presently, almost every state in the nation
has some form of hate crimes legislation. More than one-half
of these states have enacted laws based on, or similar to,
ADL's model hate crimes statute.''<116>
The definitions of these hate crimes vary from state to
state. For example, Oregon has a crime of intimidation in
the second degree (where a person, in part, intentionally
threatens to inflict serious physical injury to another
person or to cause substantial damage to another's property,
because of the person's perception of the other's race,
colour, religion, national origin or sexual orientation),
and a crime of intimidation in the first degree (where two
or more persons, in part, intentionally, knowingly, or
recklessly cause physical injury to a person because of such
perception).<117> Ohio has an ethnic intimidation statute
that increases the penalty for the crimes of aggravated
menacing, menacing, criminal damaging or endangering,
criminal mischief or telephone harassment, when committed by
reason of the race, colour, religion, or national origin of
another person.<118> New York has a crime of aggravated
harassment in the second degree when a person, in part, with
intent to harass, annoy, threaten or alarm another person,
strikes, shoves, or kicks another person because of the
race, colour, religion or national origin of such
person.<119> The hate crimes statute of Illinois affords
protection to persons attacked by reason of their race,
colour, creed, religion, ancestry, gender, sexual
orientation, physical or mental disability or national
origin, and provides, in addition, that the injured person
may bring a civil action for damages, an injunction or other
appropriate relief for the injury suffered. <120>
The important legal issue that arose in relation to the
legislation creating these hate crimes was whether or not
such legislation was constitutional. The state courts were
divided on this issue. The courts in Oregon, Florida and New
York held that their hate crimes legislation was
constitutional.<121> However, the courts in Wisconsin and
Ohio held that their hate crimes legislation was not
constitutional, largely on the ground that such crimes, by
increasing the penalty for the basic crime because of the
accused's hateful motivation, violated the freedom of speech
guarantee of the First Amendment of the Constitution.<122>
In June 1993, the United States Supreme Court resolved this
uncertainty by holding that such hate crimes statutes were
indeed constitutional .
In Wisconsin v. Mitchell,<123> the accused was one of a
group of young black men. After discussing a scene from the
movie "Mississippi Burning", which showed a white man
beating a young black, the group moved outdoors where a
young white teenager was seen walking on the other side of
the street. The accused said, "You all want to fuck somebody
up? There goes a white boy; go get him." He counted to
three, pointed in the boy's direction, and the group rushed
the boy, beating him severely. The accused was convicted of
aggravated battery, but because he was found to have
selected the victim because of the victim's race, the
penalty was increased pursuant to the Wisconsin hate crime
statute to four years in jail (the maximum otherwise would
have been two years). The Wisconsin Supreme Court, however,
held that the hate crimes statute violated the First
Amendment, the freedom of speech guarantee of the United
States Constitution, because it sought to punish one's
motive for acting, and that it was constitutionally
overboard because it would have a "chilling effect" on the
exercise by others of freedom of speech.<124>
On appeal, the United States Supreme Court rejected these
arguments. Chief Justice Rehnquist, delivering the unanimous
opinion of the Court, argued that, traditionally,
sentencing judges have considered a wide variety of factors
in determining what sentence to impose on a convicted
accused. The accused's motive for committing the crime was
one important factor. The Court pointed out that in the case
of Barclay v. Florida,<125> it had allowed the sentencing
judge to take into account the accused's racial animus in
determining if the accused should be sentenced to death,
and, in effect, the same principle was applied by the
Wisconsin Legislature when it decided to increase penalties
in relation to bias-motivated crimes. As regards motive, the
Court argued that motive plays the same role under the
Wisconsin statute as it does under federal and state anti-
discrimination laws, which had been previously held to be
constitutional. The Court distinguished its decision in R.A.
V. v. City of St. Paul<126> from this case, pointing out
that whereas the R.A. V. case involved an ordinance directed
at expression,<127> the statute in this case aimed at
conduct unprotected by the First Amendment. The Court added:
[T]he Wisconsin statute singles out for enhancement
bias-inspired conduct because this conduct is thought
to inflict greater individual and societal harm. For
example, according to the State and its amici, bias-
motivated crimes are more likely to provoke
retaliatory crimes, inflict distinct emotional harms on
their victims, and incite community unrest.... The
State's desire to redress these perceived harms
provides an adequate explanation for its penalty
enhancement provision over and above mere disagreement
with offenders' beliefs or biases. As Blackstone said
long ago, "it is but reasonable that among crimes of
different natures those should be most severely
punished, which are the most destructive of the public
safety and happiness." 4 W. Blackstone, Commentaries
*16. <168>
And, the Court found no merit in the contention that the
statute was overboard.<129>
5.1.2.2 Civil Rights Provisions
Some states have created statutory provisions that give rise
to criminal liability for a violation of a person's civil
rights under the state or federal constitution or laws. For
example, the California Penal Code provides, in part, that
no person, whether or not acting under colour of law, shall
by force wilfully injure, intimidate, interfere with,
oppress, or threaten any other person in the free exercise
of any right secured to him under the constitution or laws
of the state or of the United States because of the other
person's race, colour, religion, ancestry, national origin,
disability, gender, or sexual orientation. However, no
person shall be convicted of that crime based on speech
alone, except upon a showing that the speech itself
threatened violence against a specific person or group of
persons and that the defendant had the apparent ability to
carry out the threat. It is also a crime to knowingly
deface, damage or destroy the property of any person for the
purpose of intimidating or interfering with the free
exercise of such rights because of the other person's race,
colour, religion, ancestry, national origin, disability,
gender, or sexual orientation.<130>

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